Citation Nr: 0018239
Decision Date: 07/12/00 Archive Date: 07/14/00
DOCKET NO. 94-46 572 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Jackson,
Mississippi
THE ISSUES
1. Entitlement to an increased disability evaluation for
service-connected low back disorder, with degenerative joint
disease, currently rated as 20 percent disabling.
2. Entitlement to an increased disability evaluation for
service-connected furunculosis (abscess), hidradenitis
suppurative and cystic acne, currently rated as 30 percent
disabling.
3. Entitlement to a total disability rating on the basis of
individual unemployability due to service-connected
disabilities.
REPRESENTATION
Appellant represented by: Paralyzed Veterans of America,
Inc.
ATTORNEY FOR THE BOARD
W. Yates, Associate Counsel
INTRODUCTION
The appellant served on active duty from December 1965 to
October 1967 and from January 1970 to October 1975.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from an August 1994 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Jackson, Mississippi. That rating decision: (1) denied an
increased disability evaluation in excess of 20 percent for
service-connected low back disorder; and (2) denied an
increased (compensable) disability evaluation for service-
connected furunculosis (abscess) of the scrotal area.
In June 1996, and again in October 1997, the Board remanded
this case for the RO to search for additional medical records
and to schedule the appellant for additional medical
examinations. The RO was also directed to consider the
appellant's newly raised claim of entitlement to individual
unemployability due to service-connected disabilities.
In February 1999, the RO issued a rating decision which, in
pertinent part, granted an increased disability evaluation of
30 percent, effective February 1994, for the appellant's
service-connected skin disorder, recharacterized as
furunculosis (abscess), hidradenitis suppurative and cystic
acne. See AB v. Brown, 6 Vet. App. 35 (1993).
The RO's February 1999 rating decision also denied the
appellant's claim of entitlement to individual
unemployability due to service-connected disabilities.
Following a third remand by the Board in May 1999, the
appellant timely perfected his appeal of this issue.
FINDINGS OF FACT
1. The RO has obtained all relevant evidence necessary for
an equitable disposition of the appellant's appeal.
2. The veteran's service-connected low back disorder, with
degenerative joint disease, is currently manifested by:
forward flexion to 40 degrees; backward extension to 15
degrees; right lateral flexion to 15 degrees; left lateral
flexion to 15 degrees; slow, but otherwise normal, gait; no
evidence of weakness, crepitation, muscle spasm or swelling;
no significant neurological abnormalities; and subjective
complaints of constant low back pain, radiating into the
lower extremities. X-ray examination of the lumbar spine
revealed: slight narrowing of the L1-L2 disc space, with
small osteophytes; marked narrowing of the L4-L5 and the L5-
S1 disc spaces, with large osteophytes; and subchondral
sclerosis characteristic of advanced degenerative disc
disease.
3. Medical evidence demonstrates that the veteran's service-
connected low back disorder, with degenerative joint disease,
is manifested by no more than a moderate limitation of motion
of the lumbar spine.
4. The veteran's service-connected skin disorder, including
furunculosis (abscess), hidradenitis suppurative and cystic
acne, is currently manifested by redness, pain and tenderness
in the groin and axillae areas. There are also lesions on
the veteran's back that are not so inflamed; however, this
condition does not result in ulceration or extensive
exfoliation or crusting, systemic or nervous manifestations,
or exceptional repugnancy.
5. The veteran's combined service-connected disability
rating, for his two service-connected conditions, is 40
percent, and there being no exceptions which would apply to
combine his disabilities as a single disability, the
percentage requirements under section 4.16(a) of VA
regulations for a total rating based on individual
unemployability have not been met.
6. The evidence of record does not reflect that the veteran
is unable to secure and follow a substantially gainful
occupation by reason of his service-connected disabilities.
CONCLUSIONS OF LAW
1. The criteria for a disability rating in excess of 20
percent for service-connected low back disorder, with
degenerative joint disease, have not been met. 38 U.S.C.A.
§§ 1155, 5107 (West 1991 & Supp. 1999); 38 C.F.R. Part 4,
including 4.7, 4.40, 4.45, 4.59, 4.71a and Diagnostic Codes
5003, 5010, 5292 (1999).
2. The criteria for a disability rating in excess of 30
percent for service-connected furunculosis (abscess),
hidradenitis suppurative and cystic acne, have not been met.
38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4,
including § 4.7, 4.20, 4.118 and Diagnostic Code 7806 (1999).
3. The criteria for a total disability rating on the basis
of individual unemployability due to service-connected
disabilities have not been met. 38 U.S.C.A. § 1155 (West
1991); 38 C.F.R. §§ 3.321, 3.323, 3.340, 4.16(a), (b) (1999).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Preliminary Matters
The appellant contends that he is entitled to increased
disability ratings for his service-connected low back and
skin disorders. He also claims entitlement to a total
disability rating on the basis of individual unemployability
due to his service-connected disabilities.
The appellant's claims are "well grounded" within the meaning
of 38 U.S.C.A. § 5107(a) (West 1991). His assertion that his
service-connected disorders have increased in severity is
plausible. See Proscelle v. Derwinski, 2 Vet. App. 629, 632
(1992) (where a veteran asserted that his condition had
worsened since the last time his claim for an increased
disability evaluation for a service-connected disorder had
been considered by VA, he established a well-grounded claim
for an increased rating). The veteran has also presented a
well-grounded claim for TDIU. See Stanton v. Brown, 5 Vet.
App. 563 (1993). All relevant facts have been properly
developed and no further assistance to the veteran is
required to comply with the duty to assist mandated by
38 U.S.C.A. § 5107(a).
Service-connected disabilities are rated in accordance with a
schedule of ratings, which are based on average impairment of
earning capacity. Separate diagnostic codes identify the
various disabilities. 38 U.S.C.A. § 1155 (West 1991);
38 C.F.R. Part 4 (1999). The disability ratings evaluate the
ability of the body to function as a whole under the ordinary
conditions of daily life, including employment. Evaluations
are based on the amount of functional impairment; that is,
the lack of usefulness of the rated part or system in self-
support of the individual. 38 C.F.R. § 4.10 (1999). Where
there is a question as to which of two evaluations shall be
applied, the higher evaluation will be assigned if the
disability picture more nearly approximates the criteria for
the higher rating. 38 C.F.R. § 4.7 (1999).
Consideration of the whole recorded history is necessary so
that a rating may accurately reflect the elements of a
current disability. 38 C.F.R. § 4.2 (1999); Peyton v.
Derwinski, 1 Vet. App. 282 (1991). While the regulations
require review of the recorded history of a disability by the
adjudicator to ensure a more accurate evaluation, the
regulations do not give past medical reports precedence over
the current medical findings. Where an increase in the
disability rating is at issue, the present level of the
veteran's disability is the primary concern. Francisco v.
Brown, 7 Vet. App. 55, 58 (1994).
II. Factual Background
Private medical treatment records, dated from July 1990
through July 1993, were received from the Richton Medical
Center. A treatment report, dated July 1993, noted that the
veteran was doing well and had "no complaints." The report
noted an assessment of hypertension, chronic back pain and
hypoperistalsis.
In June 1994, a VA skin examination was conducted. Physical
examination revealed hidradenitis intertrigo under the arms,
groin and sack on both sides. The report also noted scars on
the veteran's lower back. Color photographs of these areas
were taken pursuant to this examination.
In June 1994, a VA examination of the spine was conducted.
The report of this examination noted the veteran's complaints
of low back pain, exacerbated by prolonged sitting, standing
or walking. The veteran also reported pain and numbness
radiating down into his lower extremities. Physical
examination revealed:
Station and gait - He moves about
somewhat slowly with a slight limp on the
left. Exam of the back reveals he is
able to stand erect. No spasm or
tenderness is noted. Range of motion of
the lumbar spine is 55 degrees of flexion
and 20 degrees of extension. He had a
poor to fair ability to heel and toe
walk. He is able to squat but had to
hold on the examination table to help
pull himself back up. Reflexes were on
the order of trace to one plus at the
knees and one plus at the ankles.
Sensation was intact but there was
subjective generalized decrease over both
lower extremities.
X-ray examination of the lumbosacral spine revealed moderate
narrowing involving L4-L5 and L5-S1, with vacuum disc
phenomenon. The report also noted anterior spur formations
at L5, L4 L2, and L1 levels. The height of other
intervertebral disc spaces and vertebral bodies is
unremarkable. The report concluded with an impression of
chronic lumbar syndrome with history of injury and
degenerative changes.
In August 1994, a letter was submitted by the veteran's
spouse. She indicated in her letter that the veteran's
"back, hips and legs have him in constant pain. Sometimes,
he looses the feeling in his legs and feet. Sometimes he can
not even stand upright." She also indicated that the
veteran's service-connected skin disorder is manifested by
constant drainage in the scrotal area.
During the course of this appeal, medical treatment and other
administrative records, dating back to April 1977, were
obtained from the Social Security Administration (SSA).
These records indicated that the veteran was employed as a
tree trimmer for a utility company from January 1977 to
August 1987. A decision from SSA, dated in August 1990,
noted that the veteran "testified to constant pain each day
in his low back and radiating to his legs and knees. The
pain causes him to use a cane to help him get up and out of a
chair." The decision also noted that the veteran's ability
to walk was limited. In October 1996, the veteran filed a
report of continuing disability indicating that he had
degenerative disc disease causing pain in his lower back,
hips and legs. In discussing his mobility, the veteran noted
that "I can walk around inside. I can walk short distances
on level surface with cane. I have to hold on to something
to get up from chairs."
The report of a physical examination, performed in February
1997, noted the veteran's complaints of low back and leg
pain. It also noted his complaints of a staph infection of
the groin. Physical examination of the dorsal lumbar spine
revealed:
He allows 35 degrees of forward flexion,
5 degrees of extension and 10 degrees of
lateral flexion and rotation of the
dorsal lumbar spine. Straight leg
raising test is negative in a sitting
position, positive at 30 degrees
bilaterally supine. He has no atrophy of
his thighs or calves, knee jerks are 0/4,
ankle jerks are 1/4 bilaterally. He has
a full range of motion of all joints of
both lower extremities.
The report noted that the veteran "walks about slowly with
his legs spread with no limp or external support. X-ray
examination of the lumbar spine revealed "narrowing of L4-5
and more pronounced narrowing of L5-S1 with some mild
osteoarthritic changes in the upper lumbar spine." The
report concluded, in part, with an impression of degenerative
disc disease, at L4-L5 and L5-S1. The examiner also noted
that he felt the veteran would have difficulty squatting,
stooping and bending.
In March 1997, a VA examination for joints was conducted.
The report of this examination noted the veteran's complaints
of low back pain, which radiates down into his knees. The
veteran also reported that his back pain was aggravated by
movement and that he has some numbness on the lateral aspect
of the right thigh and leg about 60 percent of the time.
Physical examination revealed a normal gait. The report also
noted:
Back: The patient stands erect with a
level of pelvis and no scoliosis. He
demonstrates the following range of
motion in his lumbar spine: Flexion 30
degrees, extension 15 degrees, right
lateral bending 15 degrees, left lateral
bending 15 degrees. Axial compression
causes the patient to complain of pain.
Simulated rotation also causes the
patient to complain of pain. Neither of
these examinations should be painful.
The patient is tender over the spinous
process of L5. In the sitting position,
straight leg raising was painless. In
the supine position, he complained of low
back pain at 20 degrees bilaterally.
This is another anatomically inconsistent
response from the patient.
Neurologic: Deep tendon reflexes were
present in the knees and absent in the
ankles bilaterally. He could walk on his
heels and toes without assistance. He
could squat and arise from the squatting
position without assistance. I could
detect no motor weakness or sensory
deficit in the lower extremities. There
is no evidence of atrophy present.
X-ray examination of the lumbar spine revealed slight
narrowing of the L1-L2 disc with small osteophytes, marked
narrowing of the L4-L5 and L5-S1 discs with large
osteophytes, and subchondral sclerosis characteristic of
advanced degenerative disc disease. The examination report
concluded with an impression of degenerative disc disease,
multilevel, lumbar spine. The examining VA physician noted
that the veteran had given multiple anatomically inconsistent
responses during the examination, and that "one cannot rely
upon the history or complaint of pain given by the patient."
He also noted that there was no evidence of weakness,
crepitation, muscle spasm or swelling during the physical
examination.
In March 1997, a VA neurological examination was conducted.
The report of this examination noted the veteran's complaints
of low back pain, radiating down into his right lower
extremity. Physical examination revealed that his lower
extremities were symmetrical. No atrophy, fasciculation or
abnormal movement was detected. Muscle strength of the lower
extremities was 5/5. Straight leg raising tests were
negative at 90 degrees, bilaterally. Sensory examination
revealed no deficits to any modality on either side. The
report also noted that the veteran was mildly diffusely
tender over his low back. The following impression was
given:
From a neurological standpoint, he has no
deficits. He has mild symptoms of nerve
root irritation on the right side,
probably in the S1 dermatome, but there
are no deficits associated with this.
Most of his discomfort is
musculoskeletal, and he almost certainly
also has degenerative arthritis involving
his knees and possibly his hips.
In March 1997, a VA skin examination was conducted. The
report of this examination noted the veteran's narrative
history of "draining places under his arms, in the groin,
around his butt and all over his back." The veteran
indicated that this condition was painful and that he must
take multiple showers daily. The report concluded with a
diagnosis of hidradenitis suppurativa. Color photographs of
the veteran's underarms, back and groin were taken and
included with the examination report.
In January 1998, a VA examination for skin diseases was
conducted. The report of this examination noted the
veteran's narrative history of lesions on his back, groin,
scrotum and axillae areas. Physical examination revealed, in
part:
[T]he patient, as mentioned earlier, has
pain and tenderness and redness in the
groin and in the axillae. The lesions on
his lower back are not as inflamed.
There is extensive scarring seen. I do
think what I am seeing now is exactly
related to the problem he had before
while he was in the service. These are
the same disorder, it has just worsened.
Close up pictures were taken. I have
seen this type of disorder frequently.
It may indeed be disabling. In this
individual, especially in the summer, it
tends to be more disabling as the heat
worsens it.
The VA examiner also noted that the veteran has cystic acne
type lesions, which go along with a triad of cystic acne,
hidradenitis suppurativa, comedones and occasionally
pilonidal cyst. Color photographs of the veteran's armpit,
back and scrotum were taken and included with the examination
report.
A VA examination of the spine was also conducted in January
1998. The report of this examination noted the veteran's
complaints of back pain, which radiates down into both of his
lower extremities. He also reported that "numbness on the
lateral half of the right lower extremity persisted after
ambulation." Physical examination revealed:
This is a well-developed, well-nourished,
alert 51-year-old white male who
ambulates with a slow but otherwise
normal gait.
Back: The patient stands erect with a
level pelvis and no scoliosis. He has no
tenderness over the spinous process. In
the thoracic spine, he has 30 degrees
right rotation and 30 degrees left
rotation. Simulated rotation, which
involved no motion in the spine, caused
just as much pain as did actual rotation.
Axial compression was painless.
He demonstrated the following range of
motion in the lumbar spine: Flexion 40
degrees, extension 15 degrees, right
lateral bending 15 degrees, left lateral
bending 15 degrees. In the sitting
position, straight leg rasing caused a
little pain in the popliteal area as his
knee approached full extension. In the
supine position, he complained of low
back pain and popliteal pain at 10
degrees on the left and 20 degrees on the
right. These are noanatomic responses,
as was the pain on simulated rotation.
The report concluded with an impression of degenerative disc
disease, multilevel, lumbar spine. The VA examiner noted
that he had reviewed the veteran's claims file and further
commented:
In a patient with multiple anatomically
inconsistent responses, one cannot rely
upon the history. There is no evidence
of weakness, crepitation, muscle spasm or
swelling during the physical examination.
Fatigability is a vague subjective
symptom which cannot be quantified.
Incoordination is a function of the
central nervous system not the lumbar
spine. As noted above, the patient has
degenerative disc disease of the lumbar
spine. It is more likely due to his age
than to jumping off a 4 ft. wall.
I believe this patient could perform
light work. He should not lift more than
40 lbs. occasionally and 20 lb
frequently. He should have a job which
does not require frequent bending. He
should be able to divide his work day
between sitting and standing.
In June 1998, the veteran's former employer submitted an
employment information report, VA Form 21-4192. The form
noted that the veteran started working as a tree trimmer for
the company in January 1977, and "went on disability" in
August 1987.
III. Analysis
Review of the appellant's claims require the Board to provide
a written statement of the reasons or bases for its findings
and conclusions on material issues of fact and law. 38
U.S.C.A. § 7104(d)(1) (West 1991). The statement must be
adequate to enable a claimant to understand the precise basis
for the Board's decision, as well as to facilitate review by
the Court. See Simon v. Derwinski, 2 Vet. App. 621, 622
(1992); Masors v. Derwinski, 2 Vet. App. 181, 188 (1992). To
comply with this requirement, the Board must analyze the
credibility and probative value of the evidence, account for
evidence which it finds to be persuasive or unpersuasive, and
provide reasons for rejecting any evidence favorable to the
appellant. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995),
aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table);
Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994).
Furthermore, as the Court has pointed out, the Board may not
base a decision on its own unsubstantiated medical
conclusions but, rather, may reach a medical conclusion only
on the basis of independent medical evidence in the record or
adequate quotation from recognized medical treatises. See
Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991), overruled
on other grounds by Hodge v. West, 155 F.3d 1356 (Fed. Cir.
1998).
Moreover, the Board has the duty to assess the credibility
and weight to be given to the evidence. See Madden v. Gober,
125 F.3d 1477 (Fed. Cir. 1997). Once the evidence is
assembled, the Secretary is responsible for determining
whether the preponderance of the evidence is against the
claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).
If so, the claim is denied; if the evidence is in support of
the claim or is in equal balance, the claim is allowed. See
also Alemany v. Brown, 9 Vet. App. 518, 519 (1996).
A. Service-Connected Low Back Disorder
The veteran's service-connected low back disorder, with
degenerative joint disease, is currently evaluated as 20
percent disabling pursuant to Diagnostic Codes 5010 and 5292.
According to Diagnostic Code 5010, traumatic arthritis is to
be evaluated as degenerative arthritis under Diagnostic Code
5003. Degenerative arthritis is to be evaluated based on the
limitation of motion of the joint, but if the disorder is
noncompensable under the applicable diagnostic code due to
insufficient limitation in the range of motion, the disorder
is evaluated at 10 percent. Thus, because traumatic
arthritis is evaluated under diagnostic codes which provide
for ratings based on limitation of motion, the evaluation
assigned for such disability must take into account the
decision of the United States Court of Appeals for Veterans
Claims in DeLuca v. Brown, 8 Vet. App. 202 (1995) in the
evaluation of these disabilities.
In DeLuca v. Brown, the Court held that 38 C.F.R. §§ 4.40,
4.45 and 4.59 were not subsumed into the diagnostic codes
under which a veteran's disabilities are rated. Id.
Therefore, the Board has to consider the "functional loss"
of a musculoskeletal disability under 38 C.F.R. § 4.40,
separate from any consideration of the veteran's disability
under the diagnostic codes. DeLuca, 8 Vet. App. at 206.
Functional loss may occur as a result of weakness or pain on
motion of the affected body part. 38 C.F.R. § 4.40 (1999).
VA regulation 38 C.F.R. § 4.40 describes functional loss and
indicates that:
Disability of the musculoskeletal system is
primarily the inability, due to damage or
infection in parts of the system, to perform the
normal working movements of the body with normal
excursion, strength, speed, coordination and
endurance. It is essential that the examination
on which ratings are based adequately portray the
anatomical damage, and the functional loss, with
respect to all these elements. The functional
loss may be due to absence of part, or all, of the
necessary bones, joints and muscles, or associated
structures, or to deformity, adhesions, defective
innervation, or other pathology, or it may be due
to pain, supported by adequate pathology and
evidenced by the visible behavior of the claimant
undertaking the motion. Weakness is as important
as limitation of motion, and a part that becomes
painful on use must be regarded as seriously
disabled. A little used part of the
musculoskeletal system may be expected to show
evidence of disuse, either through atrophy, the
condition of the skin, absence of normal callosity
or the like.
38 C.F.R. § 4.40 (1999).
The factors involved in evaluating, and rating, disabilities
of the joints include: weakness; fatigability;
incoordination; restricted or excess movement of the joint;
or, pain on movement. 38 C.F.R. § 4.45 (1999).
Specifically, § 4.45 states that:
As regards the joints the factors of disability
reside in reductions of their normal excursion of
movements in different planes. Inquiry will be
directed to these considerations:
(a) Less movement than normal (due to
ankylosis, limitation or blocking, adhesions,
tendon-tie-up, contracted scars, etc.).
(b) More movement than normal (from flail
joint, resections, nonunion of fracture,
relaxation of ligaments, etc.).
(c) Weakened movement (due to muscle injury,
disease or injury of peripheral nerves, divided or
lengthened tendons, etc.).
(d) Excess fatigability.
(e) Incoordination, impaired ability to
execute skilled movements smoothly.
(f) Pain on movement, swelling, deformity or
atrophy of disuse. Instability of station,
disturbance of locomotion, interference with
sitting, standing and weight-bearing are related
considerations. For the purpose of rating
disability from arthritis, the shoulder, elbow,
wrist, hip, knee, and ankle are considered major
joints; multiple involvement of the
interphalangeal, metacarpal and carpal joints of
the upper extremities, the interphalangeal,
metatarsal and tarsal joints of the lower
extremities, the cervical vertebrae, the dorsal
vertebrae, and the lumbar vertebrae, are
considered groups of minor joints, ratable on a
parity with major joints. The lumbosacral
articulation and both sacroiliac joints are
considered to be a group of minor joints, ratable
on disturbance of lumbar spine functions.
38 C.F.R. § 4.45 (1999).
These factors do not specifically relate to muscle or nerve
injuries independently of each other, but rather, refer to
overall factors which must be considered when rating the
veteran's joint injury. DeLuca, 8 Vet. App. at 206-07.
VA regulations also specifically address painful motion and
state:
With any form of arthritis, painful motion is an
important factor of disability, the facial
expression, wincing, etc., on pressure or
manipulation, should be carefully noted and
definitely related to affected joints. Muscle
spasm will greatly assist the identification.
Sciatic neuritis is not uncommonly caused by
arthritis of the spine. The intent of the schedule
is to recognize painful motion with joint or
periarticular pathology as productive of
disability. It is the intention to recognize
actually painful, unstable, or maligned joints,
due to healed injury, as entitled to at least the
minimum compensable rating for the joint.
Crepitation either in the soft tissues such as the
tendons or ligaments, or crepitation within the
joint structures should be noted carefully as
points of contact which are diseased. Flexion
elicits such manifestations. The joints involved
should be tested for pain on both active and
passive
motion, in weight bearing and non-weight bearing
and, if possible, with the range of the opposite
undamaged joint.
38 C.F.R. § 4.59 (1999).
As noted above, the veteran's service-connected low back
disorder, with degenerative joint disease, is currently rated
as 20 percent disabling under Diagnostic Codes 5010 and 5292.
Pursuant to Diagnostic Code 5292, used in rating limitation
of motion of the lumbar spine, a 20 percent disability rating
is warranted for a moderate range of motion of the lumbar
spine. The highest available rating under this code section,
a 40 percent disability rating, is warranted for a severe
limitation of motion of the lumbar spine.
After a thorough review of the veteran's claims file, the
Board concludes that the preponderance of the evidence is
against the veteran's claim for an increased disability
evaluation in excess of 20 percent for his service-connected
low back disorder, with degenerative joint disease. The
report of his most recent VA examination of the spine,
performed in January 1998, noted the veteran's complaints of
back pain, radiating down into both lower extremities. The
examination report also noted, however, that the veteran gave
"multiple anatomically inconsistent responses" during this
examination. Thus, the examiner indicated that he could not
rely on the history provided by the veteran. The report of
this examination noted that the veteran ambulates with a
slow, but otherwise normal gait. No tenderness over the
spinous process was indicated. Range of motion testing of
the lumbar spine revealed flexion to 40 degrees, extension to
15 degrees and lateral bending, bilaterally, to 15 degrees.
The examiner further commented that "[t]here is no evidence
of weakness, crepitation, muscle spasm or swelling during the
physical examination."
The report of the veteran's March 1997 VA examination of the
spine also noted that the veteran had given multiple
anatomically inconsistent responses during the examination.
Physical examination revealed a normal gait. The report also
stated:
He could walk on his heels and toes
without assistance. He could squat and
arise from the squatting position without
assistance. I could detect no motor
weakness or sensory deficit in the lower
extremities. There is no evidence of
atrophy present.
Range of motion testing of the lumbar spine revealed flexion
to 30 degrees, extension to 15 degrees, right lateral bending
to 15 degrees, and left lateral bending to 15 degrees.
Although the report noted some tenderness over the spinous
process of L5, there was no evidence of weakness,
crepitation, muscle spasm or swelling during the physical
examination. X-ray examination of the lumbar spine revealed
slight narrowing of the L1-L2 disc with small osteophytes,
marked narrowing of the L4-L5 and the L5-S1 discs with large
osteophytes and subchondral sclerosis characteristic of
advanced degenerative disk disease.
The report of the veteran's March 1997 VA neurological
examination concluded that "[f]rom a neurological standpoint,
he has no deficits." Physical examination revealed no
atrophy, fasciculation or abnormal movement. Motor strength
of the lower extremities was 5/5, bilaterally, and the
examination report noted that the veteran's lower extremities
were symmetrical. Straight leg raising tests were negative at
90 degrees, bilaterally. The report also found "mild
symptoms of nerve root irritation on the right side, probably
in the S1 dermatome, but there are no deficits associated
with this."
The report of a private physical examination, performed in
February 1997, noted the veteran's complaints of low back and
leg pain. Range of motion testing of the veteran's spine
revealed flexion to 35 degrees, extension to 5 degrees,
lateral flexion to 10 degrees, and rotation to 10 degrees.
The report also noted a full range of motion in the joints of
both lower extremities. No atrophy of the thighs or calves
was indicated.
In view of these findings and the lack of evidence to
establish symptomatology to meet the criteria for an
increased disability evaluation, entitlement to an increased
disability evaluation beyond the currently assigned 20
percent is not shown. In reaching this conclusion, the
functional impairment that can be attributed to pain or
weakness has been taken into account; however, any pain
affecting strength and motion is not shown to a degree beyond
that contemplated by the current schedular evaluation. As
noted on the January 1998 VA examination report, "[t]here is
no evidence of weakness, crepitation, muscle spasm or
swelling during the physical examination." The VA
examination, performed in March 1997, also found no evidence
of weakness, crepitation, muscle spasm or swelling. There is
also no evidence showing a marked limitation of motion of the
lumbar spine. Thus, the Board concludes that the 20 percent
disability rating assigned adequately compensates the veteran
for his service-connected low back disorder, with
degenerative joint disease, and for any increased functional
loss he may experience with physical activities as a result
of this condition. See Sanchez-Benitez v. West 13 Vet. App.
282 (1999); DeLuca, supra; 38 C.F.R. §§ 4.40, 4.45, 4.59
(1999).
The Board has also considered potential application of the
various provisions of 38 C.F.R. Parts 3 and 4, whether or not
they were raised by the appellant. Schafrath v. Derwinski, 1
Vet. App. 589 (1991). In this case, the appellant's service-
connected low back disorder, with degenerative joint disease,
is found to be adequately evaluated pursuant to Diagnostic
Codes 5010 and 5292. There is no evidence of ankylosis or
additional limitation of motion of the lumbar spine such to
warrant evaluation pursuant to Diagnostic Codes 5289, nor is
there any evidence showing neuropathy indicative of severe
intervertebral disc syndrome such to provide for an increased
evaluation pursuant to Diagnostic Code 5293. There is also
no evidence of lumbosacral strain with muscle spasm on
extreme forward bending and loss of lateral spine motion to
warrant an increased disability rating under Diagnostic Code
5295. Accordingly, entitlement to a disability evaluation in
excess of 20 percent for service-connected low back disorder,
with degenerative joint disease, is denied.
The Board has also considered whether 38 C.F.R. § 3.321(b)(1)
might provide for an increased rating on an extraschedular
basis. That regulation provides that, in exceptional cases
where schedular evaluations are found to be inadequate, "an
extra-schedular evaluation commensurate with the average
earning capacity impairment due exclusively to the service-
connected disability or disabilities" may be assigned. The
governing norm is a finding that the case presents such an
exceptional or unusual disability picture with such related
factors as marked interference with employment or frequent
periods of hospitalization as to render impractical the
application of the regular schedular standards. See
VAOPGCPREC 36-97. However, the Board finds no evidence of an
exceptional disability picture in this case. The veteran has
not required frequent hospitalization for his low back
disorder, nor is it shown that it markedly interferes with
employment beyond the degree anticipated by the schedular
rating. The VA examiner conducting the veteran's January
1998 VA examination for the spine concluded that the veteran
"could perform light work."
B. Service-Connected Furunculosis (Abscess), Hidradenitis
Suppurative and Cystic Acne
The veteran's service-connected furunculosis (abscess),
hidradenitis suppurative and cystic acne, is rated by analogy
under Diagnostic Code 7806, eczema. A 10 percent rating
under this code section contemplates a skin disorder with
exfoliation, exudation or itching, involving an exposed
surface or extensive area. The next higher rating of 30
percent contemplates a skin disorder with exudation or
constant itching, extensive lesions, or marked disfigurement.
A 50 percent rating, the highest rating assignable based
under this code, contemplates a skin disorder with ulceration
or extensive exfoliation or crusting, and systemic or nervous
manifestations, or being exceptionally repugnant. 38 C.F.R.
§ 4.118, Diagnostic Codes 7806, 7813 (1999).
The veteran's service-connected furunculosis (abscess),
hidradenitis suppurative and cystic acne, is currently rated
as 30 percent disabling under Diagnostic Code 7806. None of
the criteria warranting a rating in excess of 30 percent for
the veteran's service-connected skin disorder have been shown
in the present case. The report of his most recent VA
examination of the skin, performed in January 1998, noted
that the veteran had redness, pain and tenderness in the
groin and axillae areas. The lesions on his lower back were
not as inflamed. Color photographs showing this condition
were also taken pursuant to this examination. After
considering all of the evidence pertaining to the veteran's
furunculosis (abscess), hidradenitis suppurative and cystic
acne, the Board finds that the disability is currently
manifested by no more than a skin disorder with exudation or
constant itching, extensive lesions, or marked disfigurement.
The evidence, including color photographs of the veteran's
armpits, back, groin and scrotum, does not show ulceration or
extensive exfoliation or crusting, systemic or nervous
manifestations, or exceptional repugnancy. Accordingly, the
preponderance of the evidence indicates the veteran's
furunculosis (abscess), hidradenitis suppurative and cystic
acne, most closely approximates the criteria for a no greater
than 30 percent rating under Diagnostic Code 7806. 38 C.F.R.
§ 4.7 (1999).
In reaching this conclusion, the Board considered whether 38
C.F.R. § 3.321(b)(1) might provide for an increased rating on
an extraschedular basis. However, the Board finds no
evidence of an exceptional disability picture in this case.
The veteran has not required frequent hospitalization for his
skin disorder, nor is it shown that it markedly interferes
with employment beyond the degree anticipated by the
schedular rating.
C. Total Disability Rating on the Basis of Individual
Unemployability Due to Service-Connected
Disabilities
The veteran has requested entitlement to a total disability
rating for compensation purposes based upon individual
unemployability due to service-connected disabilities. The
requirements for an award of a total rating based on
individual unemployability are set forth under section 4.16
of VA regulations. 38 C.F.R. § 4.16 (1999). Section 4.16(a)
provides in pertinent part,
Total disability ratings for compensation
may be assigned, where the schedular
rating is less than total, when the
disabled person is, in the judgment of
the rating agency, unable to secure or
follow a substantially gainful
occupation as a result of service-
connected disabilities: Provided That,
if there is only one such disability,
this disability shall be ratable at 60
percent or more, and that, if there are
two or more disabilities, there shall be
at least one disability ratable at 40
percent or more, and sufficient
additional disability to bring the
combined rating to 70 percent or
more. . . .
38 C.F.R. § 4.16(a) (1999).
Section 4.16(b) provides,
It is the established policy of the
Department of Veterans Affairs that all
veterans who are unable to secure and
follow a substantially gainful occupation
by reason of service-connected
disabilities shall be rated totally
disabled. Therefore, rating boards
should submit to the Director,
Compensation and Pension Service, for
extra-schedular consideration all cases
of veterans who are unemployable by
reason of service-connected disabilities,
but who fail to meet the percentage
standards set forth in paragraph (a) of
this section. . . .
38 C.F.R. § 4.16(b) (1999).
The Court has stated on many occasions that it is the Board's
responsibility to make findings based on the evidence of
record and not to supply missing facts. In the case of a
claim for a total rating based on unemployability, the Board
may not reject the claim without producing evidence, as
distinguished from mere conjecture, that the appellant can
perform work that would produce sufficient income to be other
than marginal. See Friscia v. Brown, 7 Vet. App. 294 (1994),
citing Beaty v. Brown, 6 Vet. App. 532, 537 (1994).
Furthermore, the Court has stated that VA must determine if
there are circumstances, apart from nonservice-connected
conditions and advancing age, that would justify a total
disability rating based on unemployability by placing the
appellant in a different position than other veterans with the
same combined disability evaluation. See Van Hoose v. Brown,
4 Vet. App. 361, 363 (1993).
In this case, the veteran is service-connected for two
conditions: (1) low back disorder, with degenerative joint
disease, rated as 20 percent disabling since October 1987;
and (2) furunculosis (abscess), hidradenitis suppurative and
cystic acne, rated as 30 percent disabling since February
1994. His combined disability rating, therefore, is only 40
percent, and the veteran fails to meet the percentage
standards set forth in paragraph (a) of 38 C.F.R. § 4.16
(1999). See 38 C.F.R. § 4.25 (1999).
Based on the foregoing, the RO decided in a February 1999
rating decision that the evidence of record did not show that
the veteran was unable to secure and follow a substantially
gainful occupation by reason of service-connected
disabilities as required by section 4.16(b) for referral for
extraschedular consideration by the Director of VA's
Compensation and Pension Service. The veteran was apprised
of this decision by having been given a copy of the rating
decision itself and also in a August 1999 statement of the
case.
The Board has considered the RO's judgment regarding referral
for extraschedular consideration and agrees with it. Bagwell
v. Brown, 9 Vet. App. 337 (Board may consider whether
referral to VA officials who are specifically vested with the
authority to grant extraschedular ratings is warranted and
may affirm an RO's conclusion that a claim does not meet the
criteria for submission to those officials); see Floyd v.
Brown, 9 Vet. App. 88 (1996). The VA pension criteria
require a finding that the veteran have disabilities,
permanent in nature, that would preclude all forms of gainful
employment. The Board is bound by the above-referenced
regulations in rendering its decision. However, there is no
evidence that reflects that the veteran's permanent
disabilities effectively preclude him from engaging in other
types of employment. In particular, the VA examiner, who
conducted his January 1998 VA examination for the spine,
concluded:
I believe this patient could perform
light work. He should not lift more than
40 lbs. occasionally and 20 lb
frequently. He should have a job which
does not require frequent bending. He
should be able to divide his work day
between sitting and standing.
The Board also notes with regard to the veteran's
disabilities that the descriptions in the medical reports of
the degree and extent of the veteran's disabilities contrast
significantly with descriptions of the kinds of disabling
conditions contemplated by the regulations as permanently and
totally disabling. See, e.g., 38 C.F.R. §§ 4.15, 3.340(b)
("permanent loss or loss of use of both hands, or of both
feet, or of one hand and one foot, or of the sight of both
eyes, or becoming permanently helpless or bedridden . . .
."). Finally, the Board concludes that the descriptions of
the veteran's disabilities in the medical examination reports
do not provide an overall impression of a severely
incapacitated individual. 38 U.S.C.A. § 1502 (West 1991).
Accordingly, entitlement to a total disability evaluation
based on individual unemployability is not warranted.
In reaching it's conclusion herein, the Board acknowledges
that the veteran has been awarded disability benefits by the
Social Security Administration (SSA). The Board, however, is
not binded by the findings and conclusions of the SSA.
Moreover, the Board's decision herein is based largely on
medical evidence dated after the initial SSA determination of
disability, including a specific medical finding that the
veteran could perform light work.
ORDER
Entitlement to a disability rating in excess of 20 percent
for service-connected low back disorder, with degenerative
joint disease, is denied.
Entitlement to a disability rating in excess of 30 percent
for service-connected furunculosis (abscess), hidradenitis
suppurative and cystic acne, is denied.
A total disability rating on the basis of individual
unemployability due to service-connected disabilities is
denied.
BETTINA S. CALLAWAY
Member, Board of Veterans' Appeals